[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.]

Yes, this is another post on foreign official immunity, prompted in part by the Fourth Circuit’s decision in Samantar. It responds to Professor Bill Dodge’s post here and contributes to the growing blog commentary on this topic summarized in my earlier post here. I am grateful to Opinio Juris for hosting this discussion.

In this post, I focus on just one issue. The Fourth Circuit’s decision in Samantar reasoned that jus cogens violations are not “private acts” but instead can constitute “official conduct” that comes within the scope of foreign official immunity. Bill disagrees, arguing that conduct violating jus cogens can never be official for immunity purposes, but is instead always private. Facts on the ground, State practice, and the purposes of immunity all suggest that the Fourth Circuit was correct.

As other commentators have emphasized, the perpetrators of human rights abuses do not generally operate privately, but instead “through the position and rank they occupy.” It is their official position which allows them to “order, instigate, or aid and abet or culpably tolerate or condone such crimes as genocide or crimes against humanity or grave breaches of the Geneva Conventions.” (Antonio Cassese, at 868). Thus even for many people who strongly favor accountability in international fora (like the late Professor Cassese), it is hard to view jus cogens as somehow inherently private; one might call this a flies-in-the-face-of-reality argument. (Dapo Akande & Sangeeta Shah, at 832 (further citation omitted)). The House of Lords itself – in an opinion directly counter to Bill’s position –rejected the argument that jus cogens violations are not official acts for immunity purposes. Jones v. Saudi Arabia ¶ 19 (Lord Bingham) (“I think it is difficult to accept that torture cannot be a governmental or official act..”) id. at ¶ 85 (rejecting “the argument that torture or some other contravention of a jus cogens cannot attract immunity ratione materiae because it cannot be an official act.”) (Lord Hoffman).

What State practice does support the not-official-acts argument? (more…)

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Yousuf v. Samantar, the U.S. Court of Appeals for the Fourth Circuit held that a former Somali official was not entitled to official act immunity for alleged violations of jus cogens norms. In a recent post, Professor Ingrid Wuerth takes issue with that conclusion, arguing that state practice and ICJ jurisprudence establish that allegations of jus cogens violations “do not generally deprive conduct of its ‘official’ nature for immunity purposes.”

As I have previously explained, all immunity doctrines involve three basic questions: (1) who is covered, (2) what is covered, and (3) whether there is an exception. For example, head of state immunity (a status-based immunity) generally applies only to sitting heads of state, heads of government and foreign ministers, covers all acts (even purely private ones), and is not subject to a jus cogens exception. See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). On the other hand, official act immunity (a conduct-based immunity) applies to lower level officials and to former officials, covers only acts taken in an official capacity, and may or may not be subject to a jus cogens exception.

In a recent article, Pinochet’s Legacy Reassessed, 106 Am. J. Int’l L. 731 (2012), Ingrid looks exhaustively at the third question in the context of official act immunity, concluding that state practice does not support a jus cogens exception to such immunity. That conclusion may or may not be correct—recent state practice including Samantar and the decision of the Swiss Federal Criminal Court in Nezzar may cast some doubt—but I will assume for present purposes that it is correct. Ingrid’s AJIL article did not, however, focus the same attention on the question of what constitutes an official act to which immunity attaches in the first place. Instead, she simply assumed that the second and third questions were the same. See id. at 732 n.9. In her recent post and in an interesting article on the Nezzar case, Ingrid answers the “what acts” question by adopting what one might call the “atributability theory” of official act immunity—that any act attributable to the state for purposes of state responsibility must be deemed an “official act” for purposes of conduct-based immunity. The problem is that there is no general and consistent practice of states supporting that position.

That is not to say that there is no authority at all in support of the attributability theory. The former rapporteur of the ILC’s project on the immunity of state officials from foreign jurisdiction adopted this theory in paragraph 24 of his Second Report. But his assertion has proved very controversial at the ILC and is flatly contradicted by another final ILC report, the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that…

This post examines two aspects of the Fourth Circuit’s 2012 decision on remand in Yousuf v. Samantar. Samantar has petitioned the Supreme Court for certiorari again, and the initial briefing on the cert. petition should conclude soon. Now is accordingly an opportune time to examine the Fourth Circuit’s decision, which has attracted excellent blog commentary from John Bellinger and Curt Bradley at Lawfare and Bill Dodge here. A Swiss criminal case against Khaled Nezzar raising some related issues is discussed by Gabriella Citrone at EJILTalk! and by Evelyne Schmid at intlawgrrls.

This post disagrees with some of the foregoing commentary, but it also endeavors to point readers to at least some of the arguments and scholarship on all sides of the debate. It will not introduce the Samantar case or the basics of immunity, which have been discussed by other bloggers and here. This post discusses the role of executive immunity determination in U.S. litigation and some aspects of conduct based immunity (ratione materiae) before foreign national courts for alleged jus cogens violations.

The Executive Branch and Immunity

The Fourth Circuit reasoned that with respect to head of state immunity the executive branch is entitled to absolute deference, but it receives only “substantial weight” for its determinations on conduct-based immunity. 699 F.3d at 772-73. The executive branch has argued here (as in other cases) that for both kinds of immunity its determinations are binding on the courts, based in part on admiralty cases from the 1940’s. Affording the government the power to control the outcome of litigation in federal court is in tension with Article III and inconsistent with many foreign relations cases in which the government is given little or no deference, including another area of federal common law: the act of state doctrine. One potential basis for power to make determinations binding on the federal courts, however, is the President’s constitutional power to “receive Ambassadors and other public Ministers” which includes the power to recognize foreign heads of state. The Fourth Circuit concluded that the President’s recognition power includes the power to make dispositive determinations of status but not conduct based immunity. The court’s decision on conduct-based immunity is very significant and clearly right, I believe, for reasons set out here.

The Fourth Circuit’s conclusion that the executive does control status-based determination is wrong, in my view, despite the arguments by Chimene Keitner and Lewis Yelin. The recognition power is a weak basis upon which to rest a general power over immunity because they are two very different determinations. Recognition includes…

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On Monday, Mohamed Ali Samantar filed a cert petition asking the Supreme Court to review the Fourth Circuit’s decision that he is not entitled to conduct-based immunity in a suit brought under the Alien Tort Statute and Torture Victim Protection Act alleging torture, arbitrary detention, and extrajudicial killing. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, the District Court followed the State Department’s determination, and the Court of Appeals affirmed. The Fourth Circuit held: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. I have previously explained why I believe that decision to be fundamentally correct.

Samantar’s cert petition argues that the Fourth Circuit’s decision conflicts with the decisions of the Second Circuit in Matar v. Dichter, the D.C. Circuit in Belhas v. Ya’alon, and the Seventh Circuit in Ye v. Zemin, each of which refused to recognize a jus cogens exception to the immunity at issue. In Matar, the Second Circuit deferred to the State Department’s determination that the defendant was entitled to conduct-based immunity and refused to override that determination by finding a jus cogens exception. But in Samantar, the State Department has determined that the defendant is not entitled to conduct-based immunity, so the question whether to recognize a jus cogens exception was never presented. Belhas was decided on the assumption—now corrected by the Supreme Court’s 2010 Samantar decision—that the Foreign Sovereign Immunities Act (FSIA) governed the immunity of foreign officials and held that there is no jus cogens exception to the FSIA, a conclusion that prior decisions had reached in suits against states. Ye held that there was no jus cogens exception to head-of-state immunity, an immunity that attaches because of an official’s status as a sitting head of state. In each of these cases, the question was whether to recognize an exception to an immunity that had—for one reason or another—already attached.

The question in Samantar, by contrast, is not whether to recognize a jus cogens exception to an immunity that has already attached, but the antecedent question whether jus cogens violations can be taken in an official capacity so that conduct-based immunity attaches in the first place. As Judge Stephen Williams noted in his concurring opinion in Belhas, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. The Fourth Circuit’s decision in Samantar is the first Court of Appeals decision to say whether jus cogens violations can constitute official acts for purposes of conduct-based immunity.

My friend Curt Bradley has suggested that distinguishing these two questions is just semantics. To see why it is not, it may be useful to step back and consider how immunity generally works. All immunity questions proceed in three basic steps: (1) who is covered, (2) what is covered, and (3) is there an exception. I will use state immunity, status-based immunity, and conduct-based immunity as illustrations, but one could ask the same questions with respect to diplomatic and consular immunities. (more…)

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On November 2, the U.S. Court of Appeals for the Fourth Circuit issued its opinion on remand in Yousuf v. Samantar. The opinion contains two key holdings: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms.

Samantar served as Defense Minister and then as Prime Minister of Somalia before fleeing that country in 1991 and coming to the United States in 1997. Plaintiffs brought suit under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) alleging that they and members of their families had been subjected to torture, arbitrary detention, and extrajudicial killing by government agents under Samantar’s command. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, emphasizing the lack of a current recognized government in Somalia that could assert or waive Samantar’s immunity and the fact that Samantar is a resident of the United States. The district court followed the State Department’s determination, and Samantar appealed to the Fourth Circuit.

The United States filed an amicus brief in the Fourth Circuit arguing that the State Department’s determination with respect to Samantar’s immunity was binding on the courts, but the Court of Appeals held that this depended on the kind of immunity determined. Broadly speaking, there are two sorts of foreign official immunities. Status-based immunities—like head-of-state immunity—depend on an official’s status as the current holder of an office and extend to all of his actions, whenever performed. Such immunities last only as long as the official continues in office. Conduct-based immunity, on the other hand, extends only to acts taken in an official capacity, but such immunity continues after the official leaves office. Current officials who do not qualify for status-based immunities, as well as all former officials, are entitled only to conduct-based immunity for their official acts.

Citing the President’s constitutional authority to “receive Ambassadors and other public Ministers,” the Fourth Circuit concluded “that the State Department’s pronouncement as to head-of-state immunity is entitled to absolute deference.” Slip Op. 14. This conclusion is consistent with other recent decisions in head-of-state cases treating the State Department’s determinations as conclusive. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). The State Department had never recognized Samantar as Somalia’s head of state (although even if it had, his status-based immunity would have ended when he left office). But the Fourth Circuit is the first court of appeals to consider the degree of deference owed to determinations of conduct-based immunity following the Supreme Court’s decision in Samantar. The Fourth Circuit found “no equivalent constitutional basis” for the State Department’s determination of official-act immunity, which “is not controlling, but . . . carries substantial weight.” Slip Op. 14, 15.

Turning to the substance of conduct-based immunity, the Court of Appeals held that “officials from other countries are not entitled to foreign official immunity for jus cogens violations.” Slip Op. 22. As the court noted, this is consistent with a long line of pre-Samantar cases, which applied the FSIA to foreign officials but concluded that gross human rights violations were not official acts entitled to immunity. Slip Op. 17-18. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) (concluding that “Marcos’ acts of torture, execution, and disappearance were clearly acts outside of his authority as President”). The Supreme Court in Samantar referred to the same line of cases and observed that the distinction between official acts and those beyond the scope of authority “may be correct as a matter of common-law principles.” 130 S. Ct. 2278, 2291 n.17 (2010). Thus, the Fourth Circuit was certainly right to conclude that the pre-Samantar cases discussing official capacity in the context of the FSIA “are instructive for post-Samantar questions of common law immunity.” Slip. Op. 17.

Unfortunately, this section of the Fourth Circuit’s opinion contains two analytical errors. While these errors offset each other, allowing the court to reach the correct conclusion, they weaken the opinion’s persuasive force. The Court of Appeals first erred by assuming that whether acts are official turns on whether those acts are attributable to the State. Slip Op. 17. As Article 58 of the ILC Draft Articles on State Responsibility makes clear, the attributability of an act to the State for purposes of state responsibility is “without prejudice to any question of the individual responsibility of any person acting on behalf of a State.” Indeed, both the U.S. government and the Supreme Court in Samantar expressly rejected the syllogism “that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state.” 130 S. Ct. at 2290. See also Brief of the United States as Amicus Curiae, Samantar v. Yousuf, at 12 (noting that while “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers,” it is “incorrect to extrapolate from that principle the conclusion that a suit against a foreign official is invariably equivalent to a suit against the foreign state itself”) (internal quotation marks and citations omitted).

The Court of Appeals’ second error was to confuse the question whether jus cogens violations can be considered to have been taken in an official capacity at all, so that conduct-based immunity attaches in the first place, with the question whether there is a jus cogens exception to immunity. Slip Op. at 19-22. There is a long line of authority holding that once immunity has been established, no exception for jus cogens violations exists. See, e.g.,Jurisdictional Immunities of the State (Germ. v. Italy), 2012 I.C.J. __, ¶ 97 (Feb. 3); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 58 (Feb. 14). But none of these cases addresses the threshold question for conduct-based immunity of whether an act was taken in an official capacity in the first instance, for unlike other immunities, conduct-based immunity attaches only to official acts. As Judge Williams noted in Belhas v. Ya’alon, the threshold question whether a defendant “acted in his official capacity” so that immunity attaches in the first place is “quite distinct” from the existence of a jus cogens exception. 515 F.3d 1279, 1292 (D.C. Cir. 2008) (Williams, J., concurring). On this threshold question of official capacity there is an equally long line of authority—much of it cited by the Fourth Circuit—that jus cogens violations cannot be considered official acts for the purposes of conduct-based immunity. See, e.g., Regina v. Bartle ex parte Pinochet, 38 I.L.M. 581, 594 (H.L. 1999) (Lord Browne-Wilkinson) (“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”). Congress took the same view in enacting the TVPA, finding that “because no state officially condones torture or extrajudicial killings, few such acts, if any, would fall under the rubric of ‘official actions’ taken in the course of an official’s duties.” S. Rep. No. 102-249, at 8 (1991). Thus, the Court of Appeals was right to conclude that, “as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.” Slip Op. 19.

One suspects that the Fourth Circuit’s first error of viewing official capacity as turning on attributability to the State forced it into its second error of viewing jus cogens through the lens of an exception. The unfortunate results are apparent in passages such as this: “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” Slip Op. 21-22. The better view—and the one consistent with both international law and U.S. practice—is that jus cogens violations are not performed in the defendant’s official capacity and are therefore not entitled to conduct-based immunity, even if the acts are attributable to the State for purposes of state responsibility.

In any event, as I have said, the court’s two analytical errors offset each other, and the court reached the correct conclusion. The Fourth Circuit’s holding that jus cogens violations are not official acts entitled to conduct-based immunity is consistent with existing U.S. case law, with Congress’s understanding in enacting the TVPA, and with customary international law. As more conduct-based immunity cases come before the courts, the Fourth Circuit’s decision in Samantar should be remembered not for its technical errors but for its important holding.

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